Years of ongoing turmoil in the Plainsboro Police Department have finally boiled over into a public airing of dirty laundry — courtesy of a hearing over the termination of Corporal Nicholas Procaccini.
For decades anonymous letters to the media and insiders in the department have told tales of labor unrest, favoritism, controversy over overtime hours, work slowdowns by officers, battles with police administration, and more. But now for the first time, the gory details were on display for all to see and hear — in Town Hall.
Procaccini’s hearing, made public at the officer’s request, began on October 30 and lasted a little more than an hour, but was adjourned after Procaccini’s attorney raised a procedural question regarding how the hearing would address his claims that the charges brought against his client violate the 45-day rule. That rule places a 45-day limit on the time the department has to file a complaint against an officer after a violation occurs.
The police department is pursuing Procaccini’s termination based on four charges: he was late for duty; he did not follow protocol when making motor vehicle stops; he violated procedure dealing with sick leave; and he violated policy in using the department’s E-mail system.
Central to the township’s argument is that there are strict laws and regulations governing police departments in New Jersey, and that Procaccini, who served as the president of the Plainsboro PBA for 14 years, violated those laws.
Procaccini’s attorney, however, alleges that the charges are for behavior exhibited by many officers in the department and that his client is unfairly being targeted as a result of defending another officer whom he says was terminated for filing a sexual harassment complaint. He characterized Procaccini, of South Lane in West Windsor, as a whistleblower.
Both attorneys summarized their positions during opening statements. Presiding over the hearing was hearing officer Robert Czech, hired by the township as a special hearing officer dealing with personnel matters, who will make the ultimate decision. Czech’s background includes stints as township administrator in Middletown, Kearny, and Montclair as well as business administrator in Passaic. He also formerly worked as an attorney for a law firm specializing in municipal and employment law issues.
Also in attendance at the hearing were Chief Richard Furda, Township Administrator Robert Sheehan, Lieutenant Jay Duffy, and Lieutenant Thomas DeSimone.
“There are certain truisms of police work in the state of New Jersey,” said Arthur Thibault, of Apruzzese McDermott, Mastro & Murphy law firm of Liberty Corner, the attorney representing the township and the police department. Everything is controlled by order, whether it is through regulations directly handed down from the Attorney General’s office or through an individual police department’s own policy. It is important to have those policies to maintain discipline, and police officers must follow those rules, Thibault said.
During his opening statement, Thibault summarized the series of events that led to what he says are Procaccini’s violations of these rules. In the first charge, police allege that Procaccini reported to work a little before 10 a.m. — just before a scheduled active shooter training session — on a day in April he was scheduled to work from 6 a.m. to 6 p.m., his regular shift. Procaccini allegedly did not have permission to come in late.
Police policy requires officers to check their E-mail messages through what is known as a DMS system. More importantly, Procaccini should be reviewing all of the policy notifications, as a corporal in charge of other patrol officers in the department, because he should be able to answer questions and explain the policy in his supervisory position, Thibault said. But Procaccini had 33 policies in his inbox he never reviewed or signed off on, and he admitted to doing so, leading to the second charge, Thibault added.
The third charge dealt with Procaccini’s handling of motor vehicle stops. Plainsboro police conduct bi-monthly reviews of its officers’ stops to ensure they are following proper procedures, and the video cameras in the patrol cars are reviewed. Thibault said tapes reviewed show Procaccini making stops, but not asking for drivers’ licenses, registration, or other credentials before letting drivers leave with a warning.
There were times Procaccini obtained a driver’s license, but not a registration. Not only is it a direct violation of police policy, but these drivers could have been unregistered drivers or could not have had licenses at all, Thibault said.
In addition, the department came across an evaluation Procaccini gave to a police officer who was on probation. After Procaccini filled out the paperwork for the review, he sat with the officer to provide the evaluation, during which he told the officer, “It’s all bullshit anyway,” Thibault said.
Finally, in 2009, Procaccini violated the sick leave policy after gallbladder surgery. While sick, there were days Procaccini did not call out sick, or times when he did not report his place of confinement. Other times he did not report that he left his place of confinement, Thibault said. “If you are out on paid leave, it is to be notified.”
“The problem with that is highlighted by an incident on June 7, 2009,” when Procaccini sent an E-mail to the chief, his patrol lieutenant, and the patrol sergeant, telling them he would not be in for the rest of June — rather than reporting it to dispatch, Thibault said. In addition, he listed himself back in his regular shift, making it appear as if his platoon was running heavily, even though he was not going to be at work. When another officer from his platoon asked for a day off during that time, police administration authorized the day off, thinking Procaccini would be in for work. Because they were now short-handed, the township had to pay overtime to another officer to cover the shift.
“At first blush, it may appear it seems harsh to fire a corporal for a number of rule and policy violations,” Thibault said. But the “truisms” about police work and how police work is governed in the state make it justified, he added. “Their performance and jobs are governed by rules, and they’re required to follow those rules.”
Procaccini’s lawyer, Timothy Smith of South Orange, argued however that the police department and township were targeting Procaccini and launching a vendetta to fire him for being a whistle-blower. Smith said the department began an investigation coincidentally after he encouraged a female officer, who was eventually let go from the department, to file a sexual harassment complaint against another officer in the department.
The manner in which the charges were investigated and brought against Procaccini was clear evidence of “public corruption,” and “a direct retaliation to whistle-blowing by my client.”
In addition, “a lot of what you’re going to see here is violative of the 45-day rule,” Smith added.
Incidents have occurred over the years in the department in which other police officers also could have been found in violation of these rules, but those incidents were “disregarded and ignored,” said Smith. Rather, when it came to Procaccini, police dug through his tapes and two years’ worth of E-mail to bring him up on the charges.
In response to the charge that Procaccini had not obtained credentials from drivers he stopped, Smith argued that police policy establishes guidelines stating that procedures can be reasonably modified to fit the situation.
In addition, Smith alleged that a double standard exists: Procaccini responded to an accident allegedly involving a friend of Chief Richard Furda. Smith said Furda told Procaccini that he should not issue charges against the chief’s friend.
With regard to the “late to duty” charge, Smith said Procaccini had resolved the situation, even submitting a report to his supervisors about it. With regard to Procaccini’s comments during his evaluation of a patrol officer, Smith argued that Procaccini had told the officer “Listen, your career’s not ruined,” as a result of an imperfect evaluation, Smith explained.
The language he used was inappropriate, but if charges were pursued against every officer who uses in inappropriate language, there would be charges pending against multiple officers every time banter took place, Smith said.
With regard to the E-mails, Smith said there were cases in which other officers did not read and “sign off on” their E-mails as well. He alleged that police found that Patrol Officer Kevin Lowery did not sign off on 90 E-mails in his inbox but was not charged.
With regard to the charge that he inappropriately handled his sick leave, Smith said that Procaccini had permission to change his schedule, and had done so because he realized that during the period of time he was going to be out, he had training days scheduled, and he wanted to take himself out of that special schedule.
Smith argued that all of the charges should be discarded because of a 45-day rule, the number of days he says the police department had to file the charges from the incident. “The department can’t say that something happened two years ago or six months ago,” and charge him now, Smith argued.
Thibault, however, argued that the 45-day rule does not apply because the 45-day clock begins when the report hits the desk of the person who is going to issue charges. Therefore, the investigation into Procaccini’s behavior was not included. When the report was given to Furda, the 45-day rule began, he said.
Czech said he would address the 45-day rule in his summation when he issues his opinions on the matter. However, Smith asked how each charge should be addressed during the hearing if he would continue to make the 45-day rule argument, and a recess was called. When he returned about 40 minutes later, he said the best solution was to adjourn the hearing until an agreement could be made between the two attorneys.
Sexual Harassment Case. Procaccini has also filed a lawsuit in Middlesex County Superior Court against the township, the police department, and Furda.
The suit alleges that the township and its police department violated the state law against discrimination for retaliation by suspending him in July and then terminating him because he defended former Officer Jennifer Wittmer. It also alleged that Furda was an aider and abettor to the firing of Procaccini. Wittmer, according to the lawsuit document, was terminated after she filed a sexual harassment complaint against Patrol Officers Kevin Lowery and Adam Wurpel and Corporal Scott Seitz.
According to the lawsuit, Wittmer, who was a probationary police officer, told Procaccini in September, 2008, that she was being sexually harassed by Lowery and Wurpel, and that she was being subjected to disparate treatment within the department, as she was being trained differently from the male officers by Seitz. Procaccini says he told Sergeant Jay Duffy, who told Wittmer to make a formal complaint, which she did in October, 2008, launching an internal affairs investigation.
Procaccini also told Furda about the incident. Wittmer was terminated in December, 2008, while the internal affairs investigation was still ongoing and prior to her actual probationary end date in January, 2009, the suit states. Procaccini again told Furda that he felt she was fired because of her sexual harassment complaint.
“Once it became clear to Chief Furda and the Plainsboro Police Department that Mr. Procaccini strongly supported Officer Wittmer and denounced the actions of the department,” the relatiation and harassment began, the lawsuit alleges. First, Furda and other officers allegedly held a secret PBA meeting in March, 2009, during which the sexual complaint was discussed and other officers said they wanted Procaccini to resign as the PBA president.
As a result, Procaccini resigned his position. A few days later, he filed a formal harassment complaint with Township Administration Robert Sheehan, and subsequently made a follow-up complaint. The lawsuit alleges that since those two reports, the number of retaliation and harassment incidents increased.
While he was on sick leave and recovering from gallbladder surgery, Procaccini alleges in the lawsuit that he was served at his home with three internal affairs questionnaires containing 32 questions, which he was required to answer by July 12, the same day he was scheduled to participate in a promotional exam. Because of the lengthy questionnaires, Procaccini was unable to prepare or participate in the promotional exam, the lawsuit states.
A few days later, he was told his complaint to the township would be treated as a contractual grievance, despite his argument that his complaint was supposed to be confidential. On July 17, the next day, he was served with the four sets of charges and placed on suspension.
According to a claim filed by Officer Jason Mariano, of Allentown, said he was also harassed as a result of his support for Wittmer. The claim states that Wittmer was being trained by Mariano’s corporal and sergeant.
Shortly after Wittmer was hired, Lowery began to harass her, and she asked Mariano to talk with Lowery in hopes he would stop. Lowery then began spreading rumors that Wittmer and Mariano were having an affair, the claim states. Mariano spoke with then-chief Elizabeth Bondurant about the harassment. Wittmer was then given a poor evaluation by her corporal, who admitted that Lowery had provided input for the evaluation, at which time she told the corporal that Lowery had been harassing her, the lawsuit states. “Only later, when another sergeant became aware of the harassment was an investigation initiated,” the claim states.
Since Mariano spoke up for Wittmer, he has endured harassment, including an internal affairs review of Mariano’s assigned vehicle, where numerous issues with the vehicle were subsequently investigated. When Mariano tried to talk to Furda about the continual harassment and ostracism by his fellow officers, Furda mentioned specific incidents where Wittmer and Mariano were sitting together at training, and it “looked bad,” the claim states.
Mariano is seeking $1 million in the claim, citing emotional distress, punitive damages, and attorney’s fees as a result of the harassment he sustained. According to Procaccini, Mariano is still on the force, but has decided to submit his retirement papers as a result of an injury he sustained.
Furda deferred comment to Township Administrator Robert Sheehan, who said “it has always been our policy not to comment on personnel matters and unsubstantiated charges.”
